PWD208

This is an appeal under the Payment of Wages Act 1991, ‘the Act’, by Ms. Domniak, ‘the Complainant’, of a Decision by an Adjudication Officer, ‘AO’, that William P Keeling and Sons Unlimited, ‘the Respondent’, had not breached her rights under the Act.

The Complainant is a Horticultural Farm Worker and is a permanent employee of the Respondent. She took approved leave from 18 December 2017 to 17 January 2018. On 8 December 2017, she was written to by the Respondent to state that, in accordance with the lay-off clause in her contract, her seasonal lay-off would be from 22 January 2018.

The Respondent had intakes of staff on 8 January 2018 and 15 January 2018. No further staff were taken in until 19 February 2018, when the Complainant was taken back from lay-off.

The Complainant offered to alter the timing of her annual leave but this was not accepted by her line manager.

The Complainant questioned the basis of the lay-off and subsequently lodged a complaint under the Act at the WRC. The AO found against the Complainant who appealed this Decision to the Court.

Complainant’s arguments

Section 5 (6) of the Act provides that an employer cannot make a deduction from wages that are ‘properly payable’ to an employee. The Complainant’s contract provides for an hourly rate of pay and this is properly payable to the Complainant for the period of the lay-off as the Complainant was available for work from 18 January 2018 and the employer had work available. In this time the employer provided work to other employees.

This situation does not meet the definition of lay-off under s.11 of the Redundancy Payments Act, which states that employment must cease temporarily because the employer is unable to ‘provide the work for which the employee was employed to do.

Note: Various cases under the Redundancy Payments Act and the Unfair Dismissals Act were cited in support of this contention and this argument is dealt with in the Determination below.

The Complainant was targeted for lay-off because of the timing of her annual leave and had offered to her manager that she would be prepared to alter her period of leave but this had not been accepted.

There were no clear criteria for the lay-off. Such criteria should be reasonable and should be applied in a fair manner.

The letter of 8 December 2017 referred to selection for lay-off being determined by performance, skills and other metrics while, at the WRC, the Respondent deviated from this argument in order to rely on an argument in respect of intake dates. However, other employees returned to work outside these intake dates.

The Complainant had never been subject to lay-off previously in her time with the company.

The Respondent could have refused annual leave to the Complainant or could have engaged agency workers to cover any period prior to the Complainant returning from leave.

The Complainant’s contract refers to possible lay-off or short-time where there are circumstances beyond her employer’s control. That is not applicable in this case as the management of leave is within the Respondent’s control.

Respondent’s arguments

Every year there is a Winter shutdown period and staff are laid off. In the first quarter of the year, as the weather improves and planting commences, staff are taken in. This is anticipated in the Complainant’s contract and the relevant clause includes the following;

Lay Off/Short Time

The Company reserves the right to lay you off from work or reduce your working hours where, through circumstances beyond its control, it is unable to maintain you in full-time employment…………..You will not be paid during the lay-off period.

The main factor in determining staffing levels is the weather. In-takes are planned carefully and timing is critical. On 8 January 2018, 209 staff were taken in and on 15 January 2018 a further 20 were taken in. No further staff were taken in until 19 February 2018 when the Complainant was taken back from lay-off. The Complainant was not available for the first two in-takes , as she was on leave.

The Respondent endeavours to accommodate leave requests as far as possible. If they did not, they would face claims of breaches of other legislation. In addition, the Respondent’s preference is to have permanent staff, such as the Complainant, taken in first. If there are not enough permanent staff available, seasonal staff are offered work and only then are agency staff used. The better performers, based on pick rate, are offered a return to work date before lesser performers, as is perfectly reasonable. It is not practical to require the Respondent to adapt staffing practice solely around the annual leave of permanent employees, as the needs of the business require staff at specific times.

The lay-off was operated in accordance with the provisions of the Complainant’s contract and her return was accommodated at the earliest opportunity.

The applicable law

Payment of Wages Act 1991

Interpretation

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Regulation of certain deductions made and payments received by employers.

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Deliberation

Much of the arguments put to the Court, including case law cited, related to the definition of ‘lay-off’ under the Redundancy Payments Act. However, the Court was not asked to consider any case under that Act.

This case was taken under the Payment of Wages Act, the relevant sections of which are set out above. The only issue for consideration of the Court was whether wages that were ‘properly payable’ to the Complainant in the period in question were deducted improperly, contrary to s.5 of the Act.

The Complainant’s representative was unable to point to any case law that would support her complaint under the Act.

The question for the Court was simply to determine if there was an obligation that required the Respondent to pay the wages of the Complainant in the period of lay-off.

The potential for lay-off is provided for in the Complainant’s contract.

There is no provision in the Payment of Wages Act that requires that wages be paid in periods of lay-off.

The Court is of the view that the Complainant cannot establish that there is an obligation on the Respondent to pay her for the lay-off period and, therefore, the complaint must fail.

Determination

The AO Decision is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Tom Geraghty
MK______________________
10 February 2020Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.